MEMORANDUM OF LAW IN SUPPORT September 03, 2019

On January 10, 2017 a Motion-Secondary was filed involving a dispute between Robert Harris, and Abc Corps. 1 - 8, Intimo, Inc., John Does 1 - 10, Moris Zilkha, Nathan Nathan, Prestige Employee Administrators Ii, Inc. A K A Prestige Employee Administrators, Prestige Employee Administrators, Inc. A K A Prestige Employee Administrators, Tommy Nathan, for Commercial - Contract in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 09/03/2019 11:29 AM INDEX NO. 650175/2017
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/03/2019

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------------------X

ROBERT HARRIS, Plaintiff designates
New York County as the
Place of Trial

Basis of Venue is
Plaintiff, Location of Relevant Events
Index No. 650175/2017
vs. Date Purchased 1/10/2017
INTIMO, INC., NATHAN NATHAN
individually, TOMMY NATHAN, individually,
MORIS ZILKHA, individually, PRESTIGE
EMPLOYEE ADMINISTRATORS, INC.
a/k/a PRESTIGE EMPLOYEE
ADMINISTRATORS, PRESTIGE EMPLOYEE
ADMINISTRATORS II, INC. a/k/a PRESTIGE
EMPLOYEE ADMINISTRATORS and JOHN
DOES 1-10, and ABC CORPS. 1-8,
fictitious names for persons or entities whose
present roles and identities are unknown,
Defendants.
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PLAINTIFF’S MEMORANDUM OF LAW SUPPORTING PLAINTIFF’S MOTION TO
COMPEL DISCOVERY

MEYERS FRIED-GRODIN, LLP
Empire State Building
350 Fifth Avenue, 59th Floor
New York, NY 10118
Phone: (646) 596-1292
E-mail: JMeyers@MfgLegal.com
Attorneys for Plaintiff Robert Harris

Of Counsel and on the Brief:
Jonathan Meyers, Esq.

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TABLE OF CONTENTS
PAGE

PRELIMINARY STATEMENT .....................................................................................................1

STATEMENT OF FACTS AND PROCEDURAL HISTORY.......................................................1

LEGAL ARGUMENT .....................................................................................................................3

I. DEFENDANTS MUST BE COMPELLED TO PRODUCE THE
DISCOVERY SOUGHT BECAUSE IT IS ESSENTIAL TO THE
CLAIMS IN THE CASE .....................................................................................................3

A. Comparator Discovery Is a Routine Part of Employment Discrimination
Cases ........................................................................................................................3

B. Email Discovery.......................................................................................................5

C. Defendants’ Financial Condition .............................................................................5

D. Ownership and Control of Intimo and the Relationships between the
Defendants ...............................................................................................................6

E. Other Basic Discovery Defendants Are Withholding ..............................................6

CONCLUSION……………………………………………………………………..……7

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PRELIMINARY STATEMENT

Plaintiff Robert Harris (“Plaintiff” or “Mr. Harris”) alleges age employment discrimination under

the New York City Human Rights Law (“NYCHRL”) and New York State Human Rights Law

(“NYSHRL”) and hundreds of thousands of dollars in unpaid wages.

On January 7, 2019, Plaintiff served his discovery demands on Defendants Intimo, Inc, Nathan

Nathan, Tommy Nathan, and Moris Zilkha (“Defendants”). In response, Defendant produced only a handful of

documents that amounts to little more than Plaintiff’s personnel file, and some meager interrogatory answers.

Defendants are withholding the most salient evidence in the case – namely: (i) comparator data

and information about Plaintiff’s supervisors; (ii) e-mails; (iii) Defendants’ financial condition; (iv)

ownership and control of Intimo and the relationships between the Defendants; and (v) other basic

discovery. Additionally, Defendants’ responses as to several demands are evasive and must be clarified.

The relevant case law clearly holds that the information and documents at issue are discoverable.

Accordingly, the discovery Plaintiff seeks must be produced.

STATEMENT OF FACTS AND PROCEDURAL HISTORY
A. The Discovery Being Sought

In his Complaint, Plaintiff alleges that she was fired from his job with Defendant Intimo, Inc due to

age discrimination and that he was not paid wages due to him. Meyers Aff. at ¶ 3 & Exhibit 1 thereto.1

As part of Plaintiff’s discovery requests, Plaintiff requested: (i) comparator data (i.e., information

and documents that show how Plaintiff was treated compared to similarly-situated younger co-workers);

(ii) e-mails; (iii) Defendants’ financial condition; (iv) ownership and control of Intimo and the

relationships between the Defendants; and (v) other basic discovery. Meyers Aff. at ¶¶ 4-14. See

Plaintiff’s Document Requests and Interrogatories (Exhibits 2, 3 and 4 to the Meyers Aff.).

1
“Meyers Aff.” refers to the Affirmation of Jonathan Meyers, Esq., submitted as part of Plaintiff’s moving papers.

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In Defendants’ Interrogatory Answers and Document Reponses and Objections, Defendants

failed to provide responsive documents and information as to these categories of discovery. See

Defendants Interrogatory Answers and Document Responses (Exhibits 4, 5, 6 and 7 to the Meyers Aff.)

B. A Confidentiality Stipulation Is in Place

The parties entered into a Confidentiality Stipulation, dated February 14, 2019, which is aimed at

protecting the confidentiality of certain discovery in this case and could be used to address any concerns about

keeping comparator discovery (including personnel files) from being improperly disclosed outside of this

litigation. Meyers Aff. at ¶ 16 & Exhibit 8 thereto.

C. Plaintiff’s Good Faith Effort to Resolve This Discovery Dispute Prior to Filing a Motion

Plaintiff has twice written to Defendants’ counsel, requesting that the aforementioned discovery

deficiencies be cured – to no avail. See Plaintiff’s letters dated March 29, 2019 and July 10, 2019 Meyer

Add. at ¶ 17 &Exhibits 9 and 10.

On July 11, 2019 the parties appeared for a Compliance Conference before the Court. At the

Conference, the parties had a substantive and good faith discussion about these issues, but Defendants did not

agree to provide any of the discovery at issue in this motion. And since both the writing of the

aforementioned letters, and attending the conference, Defendants have not provided the discovery at issue.

Meyers Aff. at ¶ 19.

D. The Court Permitted Plaintiff to File this Motion

At the July 11, 2019 conference, Court personnel who met with the parties said that Plaintiff should

file a discovery motion to seek the discovery at issue.

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LEGAL ARGUMENT

I. DEFENDANTS MUST BE COMPELLED TO PRODUCE
THE DISCOVERY SOUGHT BECAUSE IT IS ESSENTIAL
TO THE CLAIMS IN THE CASE

The scope of discovery is very broad. Parties are entitled to liberal discovery of “all matters

material and necessary in the prosecution” of their action. CPLR § 3101(a). The determination of what

is “material and necessary” is within the discretion of the trial court. Andon v. 302-304 Mott Assocs., 94

NYS2d 740 (2000). The phrase “material and necessary” is “interpreted liberally to require disclosure,

upon request, of any facts bearing on the controversy which will assist preparation for trial by

sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.” Allen

v. Crowell-Collier Publishing Co., 21 NY2d 403 (1968) and Foster v. Herbert Clepoy Corp., 74 A.D.3d

1139 (2nd Dep’t 2010).

Pre-trial discovery need not be limited to admissible proof, but may include "testimony or

documents which may lead to the disclosure of admissible proof." Polygram Holding, Inc. v Cafaro, 42

AD3d 339, 341 (1st Dep’t 2007).

The foregoing standards vest in the trial court broad discretion to supervise discovery and issue

such determinations as necessary to vindicate litigant rights and enforce litigant duties arising in the

individual case. Mironer v. City of New York, 79 A.D.3d 1106, 1108 (2d Dept 2010) and Auerbach v.

Klein, 30 AD3d 451, 452 (2nd Dep’t 2006).

A. Comparator Discovery Is a Routine Part of Employment Discrimination Cases

As a general principle, plaintiffs are entitled to comparator discovery in employment

discrimination cases because evidence showing how Plaintiff was treated differently than similarly-

situated employees (i.e., “comparators”), represents evidence of discrimination. With that evidence, a

plaintiff’s ability to prove discrimination is greatly enhanced. Without it, a plaintiff’s case is impaired.

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See McMahon v. N.Y. Organ Donor Network, Inc., 28 N.Y.S.3d 282, 52 Misc.3d 201 (N.Y. Sup. Ct.,

2016). “Personnel records of employees in similar positions may serve as a useful comparison with a

plaintiff's personnel file. “The use of comparison evidence allows a plaintiff to discover an employer's

intent and test the proffered reason for taking the adverse employment action.” Ibid. See also Johnson

v. IAC/InterActiveCorp, 2016 NY Slip Op 31520(U) (N.Y. Sup. Ct., August 12, 2016)(personnel files of

comparators ordered produced in a NYCHRL employment discrimination case). In Johnson, the Court

noted “[I]n Abbott v Memorial Sloan-Kettering Cancer Center, information related to an employer's

termination of other employees was held discoverable for a period of five years prior to the plaintiff's

termination. (276 AD2d 432, 433 [1st Dept 2000]).”

“Personnel records must be disclosed, at least to the extent of requiring an in camera inspection

by the court, whenever there is a reasonable possibility that these files contain relevant and material

documents” Meder v. Miller, 173 A.D.2d 392, 393, 570 N.Y.S.2d 24 (1st Dep’t 1991).

Here, the issue of Defendants’ intent as to why it fired Plaintiff is the main factual dispute of the

case. Plaintiff alleges she was fired due to discriminatory decision-making. Defendants allege that they

fired Plaintiff due to poor performance. It is therefore necessary for Plaintiff to obtain comparator

discovery to have access to evidence showing the differences between how Plaintiff (who was an older

employee) was treated in comparison to similarly-situated younger co-workers. Accordingly, this Court

should order Defendants in this case to produce comparator discovery (just like the McMahon and

Johnson courts so ordered).

Additionally, the production of the personnel files of Plaintiff’s supervisors is similarly relevant,

as they may contain information about other incidents of discrimination and failure to properly pay

wages on the part of these supervisors. This kind of evidence is called “me too” evidence and is

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powerful, discoverable evidence. Sprint v. Mendelsohn, 128 S. Ct. 1140 (2008); Johnson v.

IAC/InterActiveCorp, 2016 NY Slip Op 31520(U) (N.Y. Sup. Ct., August 12, 2016).

Note that the McMahon Court – which compelled production of comparator personnel files –

noted that the privacy these kinds of documents could be maintained by marking them confidential.

Likewise here, the parties have entered into a confidentiality stipulation and Defendants can mark them

confidential.

B. Email Discovery

In this modern era, production of emails in discovery is routine. Thus, Defendants have no

legitimate basis for withholding them. See VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93

A.D. 3d 33, 36 (1st Dept. 2012)(not only must defendant produce emails, they are duty bound to preserve

them). And a failure to properly preserve emails can result in sanctions. Chin v. Port Auth. of N.Y. &

N.J ., 685 F.3d 135, 162 (2d Cir. 2012), cert. denied, no. 12-769, 2013 WL 1285331 (U.S. Apr. 1, 2013).

Here, Defendants – for months – have indicated that they are in the process of gathering emails

to produce. Yet, months later, none have been produced and there is no indication that Defendants will

ever actually produce them.

E-mail discovery is particularly important in a case like this one, where Defendants entered into

an agreement to pay commissions to Plaintiff via e-mail. See, Plaintiff’s Complaint (Exhibit 1 to

Meyers Aff.). Defendants must be compelled to produce all e-mails requested as well as the discovery

sought about their preservation and search/production.

C. Defendants’ Financial Condition

Plaintiff is statutorily entitled to punitive damages and he is seeking them. Evidence of the

Defendants’ financial condition is relevant for calculating punitive damages. Indeed, under the

NYCHRL, punitive damages are to be awarded more liberally than other anti-discrimination statutes.

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See, e.g., Chauca v. Abraham, 30 N.Y.3d 325 (2017). Accordingly, this category of discovery should be

ordered produced. (And if Defendants are concerned about confidentiality, that can be preserved by

means of the confidentiality stipulation signed by the parties).

D. Ownership and Control of Intimo and the Relationships between the Defendants

It is important for Plaintiff to know the relationships between the Defendants. To begin with,

under anti-discrimination statutes applicable in this case, establishing ownership interests in a defendant

business, is a method for attaching individual liability. See, e.g., Maines et al v. Last Chance Funding,

Inc. d/b/a The LCF Group et al, 2018 WL 4558408 (E.D.N.Y. Sept. 25, 2018).

Moreover, given that Intimo, Inc. is a small business and is family owned (Nathan Nathan and

Tommy Nathan have a father/son relationship), there is a well-founded concern that Defendants could

manipulate business forms in an attempt to avoid liability. This concern is especially pronounced here,

given that early discovery revealed the existence of a second employer (the Prestige Defendants), who

were recently added to the case.

E. Other Basic Discovery Defendants Are Withholding

Other discovery that Defendants are withholding is of the fundamental variety. It must be

produced. Defendants’ addresses and social security numbers are basic discovery, as is the contact

information for witnesses. See CPLR 3118. Similarly, a description of what the Defendants’ witnesses

are expected to know and the facts supporting or refuting the affirmative defenses in the Answer is

standard fare for interrogatories.

Information about Plaintiff’s benefits goes to damages.

And information about Defendants’ meetings where Plaintiff’s termination was discussed and

the identification of the individual responsible for setting employment policies are relevant to

employment claims. This must all be produced.

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CONCLUSION

Under the liberal discovery provisions of the CPLR, the Court should grant Plaintiff’s motion to

compel discovery. Given that Plaintiff’s case is grounded in employment discrimination (and given that

comparator discovery is basic and essential in discrimination cases) and given that the other categories

of discovery sought are fundamental in nature, the Court should compel Defendants to: (i) to provide

comparator discovery, discovery about supervisors, e-mails, Defendants financial condition, the ownership and

control of Intimo, Inc. and relationships between the Defendants and other discovery (responsive to Plaintiff’s

Document Request Nos. 7, 8, 41, 42, 47, 48, 53, 54, 55, 56; and Interrogatories Nos. 1, 5, 6, 22, 23, 24,

35, 45, 47, 48, 50, 51, 52, 53, 54, 55, 56); and Interrogatories Nos. 1, 5, 6, 22, 23, 24, 35, 45, 47, 48, 50,

51, 52, 53, 54, 55, 56); and (ii) provide clarification as to their responses to Document Demands nos. 1

through 6, 13 through 16, 18 through 25, 32 & 39, 43-36, 51-52, 57, 59-60.

MEYERS FRIED-GRODIN, LLP

By: ____________________________________
Dated: September 3, 2019 Jonathan Meyers, Esq.
Empire State Building
350 Fifth Avenue, 59th Floor
New York, NY 10118
Phone: (646) 596-1292
E-mail: JMeyers@MfgLegal.com
Attorneys for Plaintiff Robert Harris

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Case Info

Judge

Nancy M. Bannon Track Judge’s New Case

Case No.

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Document Filed Date

September 03, 2019

Case Filing Date

January 10, 2017

County

Parties

ABC Corps. 1 - 8 Defendant
BAGINSKI, ERIC TADEUSZ Attorney for the Defendants
Intimo, Inc. Defendant
John Does 1 - 10 Defendant
LICHTENBERG, DAVID B. Attorney for the Defendant
LICHTENBERG, DAVID B. Attorney for the Defendants
MARCUS, SETH L Attorney for the Defendant
MARCUS, SETH L Attorney for the Defendants
MEYERS, JONATHAN Attorney for the Plaintiff
Moris Zilkha Defendant
Nathan Nathan Defendant
Prestige Employee Administrators II, Inc. a/k/a Prestige Employee Administrators Defendant
Prestige Employee Administrators, Inc. a/k/a Prestige Employee Administrators Defendant
Robert Harris Plaintiff
Tommy Nathan Defendant
JONATHAN MEYER Attorneys for Plaintiffs
Jessica Meyers Attorneys for Plaintiffs
ERIC TANT Attorneys for Defendants

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Motion-Secondary: Robert Harris v. Intimo, Inc., Nathan Nathan, Tommy Nathan, Moris Zilkha, Prestige Employee Administrators, Inc. A/K/A Prestige Employee Administrators, Prestige Employee Administrators Ii, Inc. A/K/A Prestige Employee Administrators, John Does 1 - 10, Abc Corps. 1 - 8

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